USA v. Rico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 19-cr-00145-PAB-2
UNITED STATES OF AMERICA,
Plaintiff,
v.
2. ARMANDO ROGELIO DURETE,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Reduction of Sentence Pursuant
to 3582(c)(2) [Docket No. 179] filed by defendant Armando Durete. 1 On August 28,
2019, Mr. Durete was convicted after a jury trial of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Docket No. 68. On February 28,
2020, the Court sentenced Mr. Durete to 120 months imprisonment followed by three
years of supervised release. Docket No. 127 at 2. At sentencing, the Court found the
total offense level to be 29 and determined Mr. Durete’s Criminal History Category to be
VI, which resulted in an imprisonment range of the statutory maximum, namely, 120
months. Docket No. 149 at 31:11–16. Mr. Durete is currently incarcerated at USP
Florence, a high-security U.S. Penitentiary in Colorado. See Federal Bureau of Prisons,
1 Because Mr. Durete is proceeding pro se, the Court construes his filings liberally
without serving as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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Inmate Locator, https://www.bop.gov/inmateloc/. Mr. Durete’s projected release date is
March 31, 2027. Id.
On December 11, 2023, Mr. Durete filed a pro se motion for a reduction in his
sentence based on Amendment 821 to the Sentencing Guidelines. Docket No. 179.
On December 14, 2023, the Office of the Federal Public Defender filed a notice of
appearance on Mr. Durete’s behalf. Docket No. 180. On May 22, 2024, counsel for Mr.
Durete filed a notice that the Office of the Federal Public Defender would not be filing a
supplement to Mr. Durete’s motion because the office had determined that Mr. Durete’s
sentence is unaffected by Amendment 821. Docket No. 182 at 1–2. The government
responded to Mr. Durete’s motion on August 17, 2024. Docket No. 187. The
government agrees that Mr. Durete’s sentencing guideline range is unaffected by
Amendment 821 and opposes the motion. Id. at 1.
Generally, a federal court may not alter a term of imprisonment once it has been
imposed. See Dillon v. United States, 560 U.S. 817, 824 (2010); 18 U.S.C. § 3582(c).
An exception to this general rule is set forth in 18 U.S.C. § 3582(c)(2). A court may
reduce a defendant’s sentence “in the case of a defendant who has been sentenced to
a term of imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C.
§ 3582(c)(2). Section 3582(c)(2) “establishes a two-step inquiry.” Dillon, 560 U.S. at
826. “At step one, § 3582(c)(2) requires the court to follow the Commission’s
instructions in [USSG] § 1B1.10 to determine the prisoner’s eligibility for a sentence
modification and the extent of the reduction authorized.” Id. at 827. “At step two of the
inquiry, § 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and
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determine whether, in its discretion, the reduction authorized by reference to the policies
relevant at step one is warranted in whole or in part under the particular circumstances
of the case.” Id.
On November 1, 2023, the Sentencing Commission adopted Amendment 821 to
the Sentencing Guidelines in order to “make[ ] targeted changes to reduce the impact of
providing additional criminal history points for offenders under a criminal justice
sentence (commonly known as “status points”), to reduce recommended guideline
ranges for offenders with zero criminal history points under the guidelines (“zero-point
offenders”), and to recognize the changing legal landscape as it pertains to simple
possession of marihuana offenses.” See U.S.S.G., Supp. to App. C., Amend. 821 (U.S.
Sentencing Comm’n 2023). Before November 2023, the Sentencing Guidelines
assessed two criminal history points, known as “status points,” for an offense committed
“while under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.” United States v. Espinoza-
Pena, 2024 WL 1675672, at *1 (D.N.M. Apr. 18, 2024) (citing U.S.S.G. § 4A1.1(d)
(2022)). In Part A of Amendment 821, the Sentencing Commission altered the “status
points” provision such that a person who has seven or more criminal history points now
receives only one additional “status point,” instead of two. Id. In addition, a person with
six or fewer criminal history points now receives no status points. Id. Amendment 821
applies retroactively. Id.; United States v. Stites, 2024 WL 3535120, at *1 (D. Kan. July
24, 2024).
Mr. Durete argues that Part A of Amendment 821 altered his sentencing
guideline range by reducing his status points. Docket No. 179 at 1–3. The Court
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agrees that Mr. Durete’s total criminal history points have changed from 15 to 14
through the retroactive application of Amendment 821. Mr. Durete received 13 criminal
history points for offenses committed between 2005 and 2013. See Docket No. 117 at
10–17. He further received a two-level enhancement for committing the offense in this
case while under a criminal justice sentence. Id. at 17. Amendment 821 modifies this
two-level enhancement to a one-level enhancement, resulting in 14 total criminal history
points. Criminal History Category VI includes a total number of criminal history points of
13 or more. See Sentencing Table, U.S.S.G. ch. 5, pt. A (2024). As such, Mr. Durete
remains in Criminal History Category VI, and, with offense level 29, his guideline range
is 151–188 months imprisonment. Id. However, Mr. Durete was sentenced to the
statutory maximum under 18 U.S.C. § 922(g)(1), namely, 120 months. Docket No. 149
at 31:11–16. Accordingly, the Court finds that Amendment 821 does not affect Mr.
Durete’s sentence and Mr. Durete is not eligible for a reduction in his sentence.
For the foregoing reasons, it is
ORDERED that the Motion for Reduction of Sentence Pursuant to 3582(c)(2)
[Docket No. 179] is DENIED.
DATED March 17, 2025.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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